Singh and Minister for Immigration and Citizenship

[2008] AATA 779

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 779

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2008/1298

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		KULDIP SINGH

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Mr G L McDonald, Deputy President

Date7 August 2008

PlaceMelbourne

Decision The decision under review is set aside and the case is remitted to the respondent with a direction to the respondent that the applicant meets the significant hardship provisions under s 22(6) of the Australian Citizenship Act 2007.

..............................................

Deputy President

CATCHWORDS

Australian Citizenship Act – whether applicant meets eligibility criteria for citizenship – applicant permanent resident for 55 days only – whether hardship discretion should be exercised – whether applicant had access to full job market – whether applicant’s age should impact on hardship discretion – decision set aside and remitted.

Administrative Appeals Tribunal Act 1975 s 37

Australian Citizenship Act 2007 ss 21(2) and 22(6)

Australian Citizenship (Transitionals and Consequentials) Act 2007 sch 3

Migration Act 1958 s 351

REASONS FOR DECISION

2 September 2008   Mr G L McDonald, Deputy President

The Application

1.          The applicant is appealing against the decision of the respondent refusing his application for Australian citizenship.

The Hearing

2.          The Tribunal has before it the documents filed for the purposes of s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents).  The applicant was self-represented. The respondent was represented by Mr Ned Rogers.

The Background

3.          The applicant was born on 1 November 1948.  The documents before the Tribunal state he arrived in Australia on 29 December 1981.  The applicant claims he arrived in Australia on 31 December 1981.  He entered Australia on a temporary entry permit, which would now be called a tourist visa.  The permit expired three months later.  The respondent ordered the applicant be deported as a result of the expired temporary permit but this order was never enforced.  The applicant was subsequently granted a bridging visa in 2003.  The applicant was further granted a return visa in 2007 when the Minister, in the public interest, exercised a discretion to grant the applicant permanent residency under s 351 of the Migration Act 1958.  On 28 May 2007 the applicant applied to become an Australian citizen.  That application was refused and the applicant appealed to the Administrative Appeals Tribunal.

4.          Since the applicant’s arrival in 1981 he has not left Australia.

5.          From the time the applicant’s temporary permit had expired, he has had periods in work, and it is not disputed that whilst he worked under a false name, he paid tax during that period. 

6.          The applicant is about to turn 60 years old.

The Submissions And Tribunal’s Determination

7.          The respondent submitted that as at the date of his application for citizenship on 28 May 2007 the applicant had only spent 55 days in Australia as a permanent resident.  The respondent therefore submits the applicant does not meet the eligibility criteria for citizenship as set out in Schedule 3 Part 2 Item 7(8) of the Australian Citizenship (Transitionals and Consequentials) Act 2007 (the Transitional Act):

In applying section 22 of the new Act to a new application covered by subitem (2), subsections 22(1) to(2), (4A) and (5A) of the new Act do not apply and the following subsections of section 22 of the new Act apply instead:

(1) For the purposes of section 21, a person satisfies the residence requirement if the person has been present in Australia as a permanent resident for:

(a) a total period of at least 1 year in the period of 2 years before the day the person made the application; and

(b) a total period of at least 2 years in the period of 5 years before that day.

8.          The respondent submits the applicant would therefore become qualified for Australian citizenship on 2 April 2009 under s 21(2) of the Australian Citizenship Act 2007 (the Act).[1]

[1] T2 page 3

9.          The hardship discretion under s 22(6) of the Act is not excluded by the Transitional Act.  Section 22(6) relevantly provides:

(6) For the purposes of paragraph (1)(c), the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:

(a) the person was present in Australia during that period (except as a permanent resident or an unlawful non‑citizen); and

(b) the Minister is satisfied that the person will suffer significant hardship or disadvantage if that period were not treated as one during which the person was present in Australia as a permanent resident.

10.        The applicant has applied for a number of jobs, both in the public sector, and in private enterprise, and there is, in relation to some of those jobs, a requirement that he have Australian citizenship.  Clearly, as the respondent submits, the applicant in the past has managed to find work during the period of time that he has been here without having Australian citizenship.  The applicant confirms this in his evidence, that usually when he has changed jobs, he has been able to get new employment within two or three weeks of applying for jobs, except for the past year, when, although he has been applying for four to six jobs every two to three weeks, he has been unsuccessful. 

11.        The applicant is a trained machinist and therefore has some skills to offer employers.  The difficulty and it seems the hardship, that relates to this applicant is primarily associated with his age, and he claims as one gets older, it becomes more difficult for one to find employment, and it would be to the applicant’s advantage if he had a full job market open to him.  This is an unusual circumstance, but the Tribunal takes notice that as one gets older, it is probably more difficult to transfer from a job involving physical work to one which does not involve physical work.  And the broader the job market available to such a person, the more opportunity he or she would have to obtain work.  The Tribunal takes it to be a disadvantage that he does not have a full job market open to him.

12.        The Tribunal takes it also to be a significant disadvantage given his age.  The Tribunal accepts the meanings of ‘significant’ and ‘disadvantaged’ that are set out in the respondent’s submission,[2] ‘significant’ being important.  It is important for an applicant such as the present applicant, who has had a long history, and a steady history of work, that he be able to continue to find and undertake work.  The Tribunal takes ‘disadvantage’ here to be his age, and the fact that the full job market is not open to him as a non-citizen.  It is a combination of factors, that is of his age and the full job market not being open, which leads the Tribunal to a conclusion that he would suffer significant hardship if he is not granted Australian citizenship.

[2] Facts and Contentions, pg 4

13.        The Tribunal bears in mind that in any event, not that this has influenced the decision, that he would be qualified for citizenship shortly, and it is to his advantage to be granted citizenship at this stage, rather than later.  For those reasons outlined above, the decision under review is set aside.

14.        The decision is that the case is remitted with a direction to the respondent that the applicant meets the significant hardship provisions under s 22(6) of the Australian Citizenship Act 2007.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of

Mr G L McDonald, Deputy President

Signed:         .....................................................................................

Grace Horzitski  Associate

Date of Hearing  7 August 2008
Date of Decision  7 August 2008
Date of Written Reasons          2 September 2008
For the Applicant  self represented
Solicitor for the Respondent     Mr Ned Rogers
  Australian Government Solicitor